How Perverse Incentives Make Killing The Best Option
Sept. 10, 2015 (Mimesis Law) — When it comes to the encounter of pedestrian vs. vehicle, we know who is going to lose that battle. But a story last week from Slate sent shudders and disbelief across the Internet: Drivers in China who injure pedestrians will come back for the kill to mitigate their financial liability to the victim.
It appears that the prevailing attitude in China—reinforced by lopsided laws—is that a dead pedestrian is worth a lot less than a maimed one. In one particularly horrific account, an unlicensed driver accidentally ran over a two-year old. When someone screamed, “you hit a child,” the driver reversed, backed over the child, threw the car into drive and ran over the child a third time. The driver then attempted to bribe the family.
One would hope that this is just a grotesque one-off; just as we’ve seen stories of hit and runs in the United States where the driver leaves the scene with the victim (dead and alive) still clinging to the vehicle. In fact, it seems impossible to believe that the practice of “hitting to kill” runs rampant in China, but as Slate notes:
It seems like a crazy urban legend: In China, drivers who have injured pedestrians will sometimes then try to kill them. And yet not only is it true, it’s fairly common; security cameras have regularly captured drivers driving back and forth on top of victims to make sure that they are dead. The Chinese language even has an adage for the phenomenon: “It is better to hit to kill than to hit and injure.”
The “fairly common” and “regularly” language should make anyone reading an article (internet or not) pause. Indeed, some readers raised concerns over whether these were isolated cases being inflated into an epidemic.
Other readers took to Twitter to quickly voice their shock and horror at the “crazy” story. I wondered if it indeed qualified as a batch of urban legends much like people waking up in ice baths to find that they’ve lost a kidney to organ thieves.
The author of the article attempted to dispel the inherent skepticism by providing some context to establish the frequency of the problem in that newspapers have published editorials on it and the governments of Taiwan and China have started seeking legislative changes to lopsided victim compensation schemes.
And those compensation schemes are the core of the problem. As with any tragedy, society seeks answers to the question of motive. Why would anyone “hit to kill?” In this instance, that answer is fairly simple, but appalling. In the Chinese victim compensation scheme, a dead child is essentially worth nothing. But if a severely injured child lives, then the offender must pay for care for the remainder of that child’s life. The same applies to adults in China: killing the victim of a traffic accident results in $30,000-$50,000 in liability. Injuring one can skyrocket the compensation to $500,000. Beyond the financial costs, the drivers are apparently “willing to kill not only because it is cheaper, but also because they expect to escape murder charges.”
These events are awful and repugnant, and there is a temptation to treat them as a “China problem” rather than the societal problem that it is. The story magnifies the inadequacies and inequities of legal systems in the plural sense. It is easy to point out those faults and failures when we can mentally contain them to a communist country, but they also exist in the U.S. legal system.
Gross sentencing disparities, ridiculous bail regimes, and unforgiving juvenile laws demonstrate how much money we spend to incarcerate and how we devalue particular groups and individuals. Beyond criminal law, one of the first things we learn in law school is that not all plaintiffs are created equal. As the author of the Slate article even pointed out in the comments:
Laws are not perfect, and sometimes they are just plain wrong. But they also aren’t static (even if Justice Scalia would like us all to keep things just the way the Founding Fathers intended). We learn harsh lessons from harsh laws and their unintended consequences. From there, we can identify areas that need focus, advocacy, and change.
When we see something fundamentally out of whack, we have to work to change it. It takes time, investment and effort. Rather than turn on our internal blinders and look with disgust at what happens outside our borders, a little self-awareness goes a long way.
Our commonalities shape and inform us as much as our uniqueness does. We can use that lens to understand that we too have practices that are inherently wrong yet politically correct (or defensible). We can aspire to find the ability to recognize these practices and support changes that realign custom, practice and enforcement. And maybe we can save the life of a baby in the process.